how much right do I have on my project, if there are patches by others?

Matthew Flaschen matthew.flaschen at
Mon Jul 9 04:25:03 UTC 2007

Rick Moen wrote:
> It is, substantively, a set of instructions saying "delete these lines".
> Therefore, I really doubt a judge is going to call that an unlicensed copy.
> As has been said in this space before, judges are not Turing machines,

Well, if they're not Turing machines, they might be non-deterministic,
and then it's even harder to predict what they'll do. ;)

>> If I understand correctly now, you actually just meant that merging a
>> patch in this situation must create (or modify) a multi-author work.
> I'm saying that (in the general case) a patch by itself is an
> independent creative work, and is likely to be treated in law the same
> way as commentary on someone's work is.  By contrast, a patch being
> _applied_ to the work is very likely to create a derivative work of the
> latter.
> That derivative work, being a multi-author work, must then necessarily
> be _either_ a joint work or a collective work, by definition.

I guess this is the part I don't understand.  By analogy, if you make a
film adaptation of Lord of the Rings, it's a derivative work of the
book, and there are two authors involved.  But I don't see how it could
be a multi-author work, since Tolkien is dead and thus there couldn't be
any collaboration.

Similarly, a fork that the original author ignores would seem to be just
as lacking in collaboration, and thus not a multi-author work.  Someone
could make this fork by writing then applying a patch, but I still don't
get how it would be multi-author (rather than a simple derivative work).

Now, if the original author applied the patch, I would understand it
being a multi-author work.  Are you talking about exclusively this
latter scenario?

  (This is
> in reply to your suggestion that such a work with a third-party patch
> applied to it _might be_ something else other than a joint or collective
> work.  No.)
>> I think I do understand that.  I should have phrased my question better.
>>  What I was wondering is how an infringing derivative work could be a
>> multi-author work (which I assumed implied licit cooperation).
> Er, I'm having a difficult time parsing that.  Are you starting out by
> positing something that is _both_ licit and infringing at the same time?

No.  My understanding is that joint and collective works are legally
created (by definition).  But derivative works are not necessarily
legal.  So my point was that an infringing derivative work couldn't be
joint or collective (/because/ that would be a conflict)

Matthew Flaschen

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